MAHABIR PRASAD SHARMA Vs. PRAFULLA CHANDRA GHOSE
LAWS(CAL)-1968-2-5
HIGH COURT OF CALCUTTA
Decided on February 06,1968

MAHABIR PRASAD SHARMA Appellant
VERSUS
PRAFULLA CHANDRA GHOSE Respondents





Cited Judgements :-

MUKHTAR UL AZIZ VS. STATE OF J and K [LAWS(J&K)-2004-6-2] [REFERRED TO]
N T RAMA RAO VS. H E THE GOVERNOR OF ANDHRA PRADESH [LAWS(APH)-1995-12-142] [REFERRED TO]
BIJAYANANDA PATNAIK VS. PRESIDENT OF INDIA [LAWS(ORI)-1973-10-2] [REFERRED TO]
S DHARMALINGAM VS. HIS EXCELLENCY GOVERNOR OF THE STATE OF T N [LAWS(MAD)-1988-2-64] [REFERRED TO]
PRATAPSING RAOJIRAO RANE VS. GOVERNOR OF GOA [LAWS(BOM)-1998-8-40] [REFERRED TO]
HAR GOVIND PANT VS. CHANCELLOR UNIVERSITY OF RAJASTHAN [LAWS(RAJ)-1977-11-10] [REFERRED TO]
P L LAKHANPAL VS. AJIT NATH ROY CHIEF JUSTICE OF INDIA NEW DELHI [LAWS(DLH)-1974-2-1] [REFFERRED TO]
UPPU VENKATARAMANA VS. STATE OF A P [LAWS(APH)-2013-4-66] [REFERRED TO]
UPPU VENKATARAMANA VS. STATE OF ANDHRA PRADESH [LAWS(APH)-2013-4-97] [REFERRED TO]
JOGENDRA NATH HAZARIKA VS. STATE OF ASSAM [LAWS(GAU)-1981-1-4] [REFERRED TO]
VINOD GUPTA VS. STATE [LAWS(J&K)-2005-6-8] [REFERRED TO]
GOUTAM BISWAS VS. STATE OF WEST BENGAL AND OTHERS [LAWS(CAL)-1997-5-38] [REFERRED TO]


JUDGEMENT

B.C.Mitra, J. - (1.)This is an application for a rule nisi in a petition for a writ of quo warranto. The petition was moved on January 12, 1968, when an order was made directing the petitioner to serve notice of this application on the respondents. Pursuant to this order notice has been served upon the respondents who have appeared in this application, but some of them opposed the issue of a rule nisi, while others supported the petitioner.
(2.)Briefly stated the events that have led to this application are as follows:-- After the last Genera! Election several political parties, whose members are members of the Legislative Assembly and the Legislative Council of West Bengal, formed a coalition under the name and style of 'United Front'. The members of the United Front in the Legislative Assembly, enjoyed the support of the majority, and the Governor appointed the respondent No. 12, who was the leader of the United Front, as the Chief Minister of the State, and on the recommendation of the Chief Minister, the Governor appointed the respondent No. 1 and the respondents Nos. 13 to 29 as the other Ministers. On or about November 1, 1967, the respondent No. 1 resigned the office of a Minister, and this resignation was accepted by the Governor with effect from November 6, 1967. On the same day, namely, November 6, 1967, the respondent No. 1, with some other members of the Legislative Assembly, claimed that the United Front had ceased to command the support of the majority of the members of the Assembly, and therefore, its leaders in the Legislative Assembly had no right to function as the Council of Ministers of the State. On the same day the Governor requested the Council of Ministers, headed by the respondent No. 12, to call the Legislative Assembly into session as early as possible, and not later than the third week of November, 1967, on the ground that doubts had been raised about the support of the majority of the members of the Legislative Assembly to the United Front Ministry. On or about November 14, 1967, the Governor requested the respondent No. 12 to call the Legislative Assembly into session on November 23, 1967. The Council of Ministers, however, declined to accede to the Governor's request, as it had decided to call the Legislative Assembly into session on December 18, 1967. On or about November 16, 1967, the Governor again requested the Council of Ministers to agree to the Legislative Assembly being summoned not later than November 30, 1967. The Council of Ministers, however, informed the Governor that the session of the Legislative Assembly could not be called before December 18, 1967. On November 21, 1967, the Governor made an order that the respondent No. 12 should cease to hold the office of the Chief Minister of the State with immediate effect and also that the Council of Ministers headed by him stood dissolved and the other Ministers should cease to hold office. This order was followed by another order of the same day whereby the Governor appointed the respondent No. 1 to be the Chief Minister of the State and on the advice of the Chief Minister, he appointed the respondents Nos. 2 and 3 to be members of the Council of Ministers. These two orders made by the Governor on November 21, 1967 are the subject matter of this application for a rule nisi.
(3.)The first point urged by Mr. Nir-mal Chandra Sen for the petitioner was that the Governor in appointing a Chief Minister and other Ministers, in exercise of his powers under Article 164 (1) of the Constitution could not act in his own discretion, and that he was bound to act in accordance with the advice of the Chief Minister. It was further argued that the Governor acting in his discretion, had no power to dismiss a Chief Minister or a Council of Ministers. Mr. Sen referred to the Notification No. 3777-A.R. dated November 21. 1967, published in the Calcutta Gazette of the same date, whereby in exercise of the powers conferred by Clause (1) of Article 164 of the Constitution, the Governor ordered that the Chief Minister Shri Ajoy Kumar Mukherjee should cease to hold office with immediate effect. This order was followed by another direction and declaration that the Council of Ministers headed by Shri Ajoy Kumar Mukherjee stood dissolved and the other Ministers ceased to hold office. By another Notification of the same date being No. 3778 A. R. the Governor appointed Dr. P. C. Ghose to be the Chief Minister of the State of West Bengal and on the advice of the Chief Minister Shri Harendra Nath Majumdar and Dr. Amir Ali Molla were appointed to be the members of the Council of Ministers.


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